tributed to cause the accident; no more and no less. The jury were so instructed in full and appropriate language.

Motion. It is urged that the plaintiff, in riding with his foot upon the step of the car, was guilty of contributory negligence, and therefore cannot recover. Even if it be admitted that the plaintiff's conduct was negligent in this respect, still it cannot be considered as contributing to the injury, if it was independent of and preceded the negligence of the defendant, and the defendant, by the exercise of ordinary care, might have avoided the injury. Atwood v. Bangor, Orono & Old Town Railway Co., 91 Me. 399, 40 Atl. 67. That the plaintiff's negligence, if he was guilty of negligence, preceded and was independent of the negligence of the defendant, cannot be questioned. It was light enough to plainly distinguish persons and objects. The defendant's team had ample room in which to pass. The teamster was seated 12 feet in front of the hub of the wheel which struck the plaintiff. He was driving at a walk. He could see the car, the people upon the platforms, and the step. Before his horses' heads reached the front platform, his jigger was scraping against the car. He could have seen the whole situation and avoided the accident by the exercise of ordinary care. Instead of that, he kept sturdily on his way, smoking his pipe, his reins hanging loosely in his hands, and apparently relying upon the strength of his jigger to sweep all obstructions from his path.

Motion and exceptions overruled.

(75 Conn. 598)

Appeal of WARD.

(Supreme Court of Errors of Connecticut. April 22, 1903.)

DESCENT AND DISTRIBUTION-CURTESY-SEISIN-ESTATES IN REMAINDER-DISTRIBU

TION-ELECTION-ACQUIESCENCE.

1. Where on intestate's death an undivided two-fifths of certain real estate was assigned to his widow as dower, and the other threefifths was distributed to his married daughter, who resided on the property with her husband, and died intestate prior to the death of the widow, the tenancy by curtesy of the daughter's husband in the property extended only to the undivided three-fifths of the property of which his wife was seised in her lifetime, and did not attach to the widow's dower interest on her subsequent death.

2. On the death of intestate's grandfather, two-fifths of certain real estate was assigned to the grandfather's widow as dower, and the remaining three-fifths was distributed to intestate's mother. On the death of the widow subsequent to the death of intestate's mother, two-fifths of the property was distributed to intestate as a part of the distribution of her grandfather's estate, subject, however, to a life estate in her father. This distribution was accepted by the probate court, and intestate lived with her father, and permitted him to use the property and receive the rents and profits during her life, without objection until her death, which occurred several years after her becoming of age. Held, that intestate thereby elected to take the property under the distribution of her grandfather's estate, and that her 1. See Curtesy, vol. 15, Cent. Dig. § 24.

administrator was therefore not liable for the rents and profits received by intestate's father after her death.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Final accounting by Frederick S. Ward, as administrator of the estate of Mabel I. Stevens, deceased. From a decree disallowing the administrator's account, he appeals. Reversed.

Samuel Fessenden and Seymour C. Loomis, for appellant. Henry C. White and John Q. Tilson, for appellees.

BALDWIN, J. The appellant's intestate was the only surviving child of Ellen M. Stevens, deceased, who was the wife of Samuel A. Stevens, and one of the three surviving children of Henry Ives, of New Haven. Henry Ives died intestate in 1859, owning several parcels of real estate. In an undivided two-fifths of one of these (a house and lot on Wall street in New Haven), dower was assigned to his widow; and the other three-fifths, under a partial distribution of his estate, became the absolute property of Ellen M. Stevens in 1864. The widow and her daughter, with the husband of the later, to whom she was married when her fater died, resided together in the house until te death of Mrs. Stevens, intestate, in 1881 One of the sons of Henry Ives died unmarried and without issue in 1871. The other (Frederick Ives) died, intestate, leaving a widow and children, in 1883. In 1886 the widow of Henry Ives died, and distributors were appointed by the court of probate for the district of New Haven to distribute what of his estate had not been previously distributed, including the proceeds of certain land sold after his death, by the widow and heirs, for $9,278.67. They set to Mabel I. Stevens, described as "a daughter of Ellen M. Stevens, deceased, and a granddaughter of said Henry Ives, deceased," two undivided fifths of the Wall street real estate, at their appraisal of $7,200, and $5,539.34 of the proceeds of the lands so sold, amounting to "$12,739.34, set to Mabel Ives Stevens, subject to the life interest therein of Samuel A. Stevens, husband of said Ellen M. Stevens, as tenant by the curtesy." To Susan J. Ives, the widow of Frederick Ives, there was set absolutely a third of the balance of the proceeds of the lands sold, and the other twothirds was divided among and set to his children, together with a parcel of real estate on East street at an appraisal of $9,000, in which each received an undivided interest, "subject to the dower interest therein of said Susan J. Ives." The return of this distribution was accepted in 1886 by the court of probate, and no appeal was ever taken from the decree of acceptance. Mabel I. Stevens was then a child of 13. She lived with her father, Samuel A. Stevens, in the Wall street house, until 1898, when she died unmarried and intestate. Prior to that time a brick block had been erected, at the expense of Mabel I. Stevens, on a part of the

Wall street lot not occupied by the original house. The appellant's administration account did not charge him with any of the rents and profits received from this block, and the decree of probate which is the subject of the present proceeding ordered him to change the account so as to charge himself with two-fifths of such rents and profits from the date of the death of Mabel I. Stevens. All the rents and profits had been collected, ever since the block was erected, by Samuel A. Stevens, and appropriated to his own use, under a claim of right as tenant by the curtesy; and, as to three-fifths of them, it is conceded that this claim is a proper one.

v.

A tenancy by the curtesy does not exist in lands in which the wife had only an estate in remainder expectant upon a life estate created for the benefit of another, which did not terminate during coverture. Todd Oviatt, 58 Conn. 174, 20 Atl. 440, 7 L. R. A. 693. Dower is an estate favored by the law, and may exist in equitable remainders. Greene v. Huntington, 73 Conn. 106, 113, 46 Atl. 883. Estates by the curtesy are not favored. Todd v. Oviatt, 58 Conn. 191, 20 Atl. 440, 7 L. R. A. 693. The considerations which exclude it in case of a remainder expectant upon an undetermined freehold estate apply equally to the case of a reversion. The seisin of Mrs. Stevens when occupying the Wall street property together with her mother was only such as attached to her own undivided three-fifths. Of the two fifths now in question the seisin was in the dowress. The tenancy by the curtesy, therefore, of Mr. Stevens, extended by law only to the undivided three-fifths of the Wall street property, to which his wife had an absolute title.

It does not, however, follow that he was accountable to this appellant for the rents and profits which he had collected from the tenants of the remaining two-fifths. The paper title of the appellant's intestate to that two-fifths is derived from the distribution of part of her grandfather's estate .in 1886. The estate so distributed, or that in which it originally consisted, had, upon his decease, descended to his heirs at law as tenants in common, subject to his widow's claim of dower. It might have been distributed among them in severalty immediately upon the assignment of dower. Webster v. Merriam, 9 Conn. 225. The postponement of a distribution of the real estate until the decease of the dowress did not alter the course of descent. The distribution, whenever made, would relate back to the death of the testator; simply turning an estate in co-tenancy into an estate in severalty. All the heirs had died prior to the distribution now in question. The share which would otherwise have come to each, therefore, belonged to his estate, and should have been distributed to his estate. Kingsbury v. Scovill's Adm'r, 26 Conn. 349; Holcomb v. Sherwood, 29 Conn. 418; Greathead's Appeal, 42 Conn. 374; Hewitt's Appeal, 53 Conn. 24, 37, 1 Atl. 815; Dickinson's Appeal, 54 Conn. 224, 6 Atl. 422; Hale's

Appeal, 69 Conn. 611, 616, 38 Atl. 392. This would have involved expense and delay. It would have given rise to several questions of conflicting right. One was as to the proper division of the proceeds of the land sold, and the dower right, if any, of the widow of Frederick Ives. Another was as to the claim set up by Samuel A. Stevens to a tenancy by the curtesy in whatever land had descended to his deceased wife. Under these circumstances all the parties interested or claiming to be interested in the undistributed estate formerly belonging to Henry Ives (or those assuming to represent them) apparently concurred in the endeavor to have their respective rights settled and determined by probate proceedings in the form of a distribution of it. The result of this family arrangement was the appointment of distributers, and their return as made and accepted. By this return the share which would have been set in fee to Ellen M. Stevens, the daughter of Henry Ives, had she been living, was set in fee to Mabel I. Stevens, her sole heir at law. It was the statutory duty of that court, before accepting it, to ascertain who were the heirs of Henry Ives, and entitled to receive the estate to be distributed. Mack's Appeal, 71 Conn. 122, 128, 41 Atl. 242. Its acceptance imported a judicial finding that Mabel I. Stevens was one of them, and this was conclusive as to that point upon all parties in interest, unless the decree should be set aside on appeal. Kellogg v. Johnson, 38 Conn. 269. It had a similar effect as settling the right of the widow and children of Frederick Ives to reIceive what would have been set to him, had he been living.

The distributers not only set the inheritance of Ellen M. Stevens to her daughter, but set it "subject to the life interest therein of Samuel A. Stevens, husband of said Ellen M. Stevens, as tenant by the curtesy." This treated the estate distributed as subject to a burden to which it was not legally subject. Presumably, the appraisal at which the estate was set to her was reduced to the extent of the supposed incumbrance, for the whole estate to be distributed was appraised in connection with and for the purposes of the distribution, and it was the evident intent of the distributers to divide it into equal halves, between the two stocks of descent which had survived to the second generation.

There is no occasion to inquire whether the court of probate had by law jurisdiction thus to incumber the Wall street property, when set to the appellant's intestate. Having done what all the parties then before it asked it to do, or acquiesced in its doing, its decree, never having been appealed from, is conclusive upon them and their privies, among whom are the appellees in the present case, who objected to the allowance of the appellant's administration account. Gates v. Treat, 17 Conn. 388. It is true that Mabel I. Stevens, at the date of the distribution, was a child, and presumably was represented by her father and natural guardian, whose per

sonal interest was adverse to hers. She came of age, however, in 1894, and lived until 1898. During the entire 12 years between 1886 and 1898 the distribution stood absolutely unquestioned, and by her conduct after coming of age she sufficiently manifested her assent to the family arrangement resulting in the distribution.

Each of the parties named in the distribution as beneficially entitled, including Samuel A. Stevens, has taken and held possession under it, and according to its terms. Mabel 1. Stevens lived during her whole life upon the land in question. She never, so far as appears, made any demand upon her father for an account of the rents and profits, although her money had been used to increase them. She never appealed from the decree accepting the return of distribution. She never asked a court of equity to remove what at least was a serious cloud upon her title. Both she and the appellees, or those to whom the appellees stand in privity, have received and enjoyed all that the distribution purported to give them. The appellees can claim no right which she has waived. Brown v. Wheeler, 17 Conn. 345, 350, 44 Am. Dec. 550. She had no title in severalty to the two-fifths interest in the Wall street land, except under this distribution. The appellees are relying upon her several title. If not a good title, by reason of the conclusiveness of the decree which gave it to her, it is under what was substantially a family agreement, to which she elected to conform. Pomeroy's Equity Jurisp. § 850. If she, claiming under this decree, was not bound to do as she did, and accept it in its entirety, she was bound to take steps within a reason. able time to set it aside or correct it. The time within which she could appeal expired in November, 1895. Pub. Acts 1885, p. 475, c. 110. The appellant filed an inventory of her estate in October, 1898, shortly after her decease, in which the Wall street property was appraised at a sum reached by deducting from its value that of a life estate in Samuel A. Stevens. So far as appears, up to that date no action for equitable relief against her father's claim to such an estate in the whole of the property had ever been instituted by her, or by her heirs or representatives; nor had any such action been instituted when the court of probate, more than three years afterwards, passed the decree appealed from. She had had a full opportunity, after coming of age, to elect whether to claim title to the premises under her mother, by proper proceedings in the settlement of her mother's estate, or under her grandfather, by the distribution of 1886. In the inventory of her mother's estate, which had been filed in the court of probate in 1881, there was no mention of any reversionary interest in two-fifths of the Wall street property. Mabel I. Stevens in 1894 could have had it inventoried. She took no steps in that direction. She manifested her election to abide by the distribution of her

grandfather's estate by her silence and inaction throughout nearly four years which elapsed between her majority and her death. Regarded as a family settlement, it could not bind her with respect to its reference to the tenancy by the curtesy, except by her express or implied consent, but with that it could. Her conduct manifested an election to give such consent, and thus secure the benefits which the distribution purported to confer upon her. Her administrator properly recognized the position which she had thus taken, by inventorying the property as subject to a life estate in her father, and his administration account must be settled on that basis.

CAHILL et al. v. CAHILL et al. (Supreme Court of Errors of Connecticut. April 17, 1903.)

For majority opinion, see 54 Atl. 201.

HAMERSLEY, J. (dissenting). The plain. tiffs were bound to prove that Julia Cahill owned and possessed the locus at the time of her death. This was essential to establish that legal title in the plaintiffs, without which they cannot recover. Property may be acquired through any kind of lawful convey. ance from its owner. This is the principal, and for the great mass of property the only, mode under our law of acquiring ownership. The fact of conveyance may be established by any appropriate evidence, and involves proof of the person who made the transfer, his ownership of the property, and the validity of the transfer as made. Where the conveyance is by writing, and especially where the law requires it to be by writing, it must be proved by the production of the original writing. When the writing has been lost, its existence and contents may be proved by relevant, secondary evidence. As ownership draws after it possession, and possession, especially of personal property, is often a badge of ownership, possession may become a relevant fact in proving the existence and contents of such writing. It may be that all evidence of a conveyance, primary or secondary, is wanting, and the possessor holds property without a conveyance from any one. For some cases of this kind the law provides other modes of acquiring property, viz., possession and user which is not by virtue of another's right from time immemorial, or such possession for a fixed period unbroken and unchallenged. The latter mode of acquisition is confined mainly to land; the former mainly to intangible rights in property. generally described as easements. Property in these rights may be acquired by prescription as well as by grant. The property is deemed to originate in a grant. By its very

nature it is created as property through the assent, voluntary or compelled, of the owner of the tangible thing it burdens. Ownership of the easement is acquired through a valid grant, whether recent or ancient; but such ownership may be acquired through possession for time immemorial as truly and as fully as by a valid grant. This mode of acquisition may rest in part on the effect of occupancy, which, as to movables, is the foundation of separate property rights; but some support is to be found in the elementary principle of jurisprudence which forbids the litigation of claims unsupported by facts within the memory of man. The length of this period has fluctuated, but is now for the most part an arbitrary term. Acquisitive prescription is illustrated when one prescribes in a que estate, but for the most part it is not used in the English law in its direct form. Its substance is secured through a legal fiction. Instead of asserting an ownership acquired by immemorial usage or possession, the owner is permitted to assert an ownership acquired by some indefinite and nonexistent grant, and the facts which establish his acquirement of ownership by possession are treated as conclusive proof of some grant which is not proved, and in most cases cannot be proved, because it never existed. Such a legal fiction does not alter the substance of things. In every such case the ownership is in reality acquired through possession, and is not acquired through a grant. Possession as a mode of acquiring property establishes ownership, when as an evidential fact it is wholly incompetent to prove an ownership acquired by grant. It happens in some cases that evidence is introduced tending to prove the existence of an actual particular grant as well as evidence tending to support the acquisition of ownership through possession. Such possibility has naturally led to some confusion between the force of possession as a mode of acquiring ownership and the evidential value of possession merely as a fact which may or may not become relevant or material in proving an actual and particular grant. The distinction, however, is real and important. A. sues B. for trespass in crossing his land. B. attempts to establish two defenses-one, ownership of a right of way, acquired through user for time immemorial (now provable by adverse possession for 15 years, or its equivalent, an indefinite and fictitious grant conclusively presumed from a possession for time immemorial); and the other, ownership of a right of way acquired through a grant from A. to B., made 10 years before the bringing of suit. User or possession of a right of way for 14 years is proved. Some evidence is produced tending to prove a grant of the way claimed, etc., made by A. to B. 10 years before, and the loss of the deed. The court charges the jury, as bearing on the first defense, that, if B. has proved the requisite possession of a right of way for 15 years, his ownership is established, but, if he has

proved such possession for 14 years only, his ownership is not established; and, as bearing on the second defense, that, if the evidence admitted as relevant to the fact of a deed made 10 years before by A. to B. granting the right of way satisfies the jury that such a grant was made, B. has established his ownership by actual grant, although the deed has been lost, and that the fact that B. actually used the way at the time of the alleged grant and afterwards might be considered, so far as that fact might be relevant to the actual making and terms of the alleged grant. Such a charge might be substantially correct, but it would be incorrect if the court should further charge that, if the jury cannot find a possession for more than 14 years, and are not satisfied that A. made a grant 10 years before, by the evidence relevant to that fact, they may consider the evidence of possession for 14 years and the evidence relevant to the unproved grant together, and from the whole evidence thus considered may presume an actual grant.

The error centers in the inaccurate use of the word "presume." Possession may confer title as truly as grant confers title. Each is a mode of acquiring ownership. But the potency of possession as a means of acquiring title, when insufficient for that purpose, cannot be used to effect the relevancy of one or more acts of ownership by the alleged grantee of a specified grant to the fact of the execution, contents, and validity of that grant. In discussing the ownership of intangible property or incorporeal heredita-, ments, it is often necessary to use the words "grant," "presumption," "possession," with differing meanings, indicated only by the context, and there is much excuse for the occasional confusion of things, related but really independent; but there is far less excuse for any confusion of this nature in discussing the ownership of land. Here the distinction between the acquisition of ownership through possession and its acquisition through a conveyance from a former owner to the present possessor is more clearly marked. Under the early English law, land, unlike property in intangible rights, was not the subject of prescription in any form. Twiss v. Baldwin, 9 Conn. 304; 2 Black. Comm. 264. Substantially the only mode by which ownership could be transferred from one owner to another was some form of conveyance. Bare possession, the appar ent right of possession, and even the right of possession might be acquired without terminating ownership of land once acquired and not conveyed. This ownership might be asserted and established through the writ of right, and then the lost possession be recovered. The limitation of the writ of right to a definite period of 60 years (St. 32 Hen. viii) to a limited extent, and the adaptation of the action of ejectment to the trial of title with the limitation of the exercise of a right of entry to a period of 20 years (St. 21 Jac. I) to a greater extent, rendered the practical